I’m honored to be speaking in a few days (remotely) in a webinar sponsored by the Pacific-Asian Legal Studies program of the University of Hawaii at Manoa’s William S. Richardson School of Law on how and why the Supreme People’s Court Serves the Belt & Road Initiative (sign up link is here).
The event will take place at 2 pm, 5 November, Hawaii time, which translates into 8 am on 6 November in the GMT +8 timezone (Hong Kong, mainland China, Singapore, etc.), 11 am in Sydney, and 8 pm on the US East Coast. The timing doesn’t work well for England (midnight) or Europe. I believe a recording will be available at a later date.
A little-discussed aspect of the work of the Supreme People’s Court (SPC) is coordinating with other Party and state organs to better serve the greater situation and resolve specific policy issues. At some point, I will set out a fuller description of this distinctive function of the SPC and its background history, but that will need to wait until I have plumbed the SPC’s past regulatory documents and conducted a more complete survey of practices in SPC divisions. I examined one aspect of the way that the SPC coordinates with other departments in a book chapter to be published in the fall of 2021. That chapter focuses on the drafting of criminal procedure judicial interpretations. The “never-ending” academic article that I am writing touches upon one aspect, briefly. This blogpost highlights some formal frameworks for coordination and at least some of what is involved.
Coordination with other central Party and state organs regarding specific legal issues is one of the unrecognized functions of the SPC. It is hard to assess how much coordination work is done in comparison to other functions of the SPC, such as hearing cases or drafting judicial interpretations. Because the Collection of the Supreme People’s Court’s Judicial Rules, a handbook for judges, places the principle “establish coordination mechanisms, properly resolve administrative disputes” in the section of general principles of administrative law, I surmise that coordination is a very important function of the administrative division. From my research below and discussions with knowledgeable persons, some judges in the civil and commercial divisions are involved in work under these frameworks, and likely also the Research Office. Some issues involve multiple divisions of the SPC.
My understanding is that coordination with other central Party and state organs is a customary function of the SPC that is being repurposed, in part, in the New Era. For that reason, I surmise that more of this will take place in SPC headquarters in the future. This is based on two factors. The first is that SPC hears most commercial and administrative cases in the circuit courts. Second, coordination with other central organs appears to be an increasingly important part of New Era governance. That was flagged in several statements of Liu Zheng, deputy head of the SPC’s Judicial Reform Office, in a February, 2021 press conference, where the SPC released its report on online mediation. Liu Zheng stated:
promote the improvement of the social governance pattern of joint construction, co-governance and sharing…（促进完善共建共治共享的社会治理格局）
In describing the accomplishments of the SPC in promoting diversified dispute resolution, he stated:
We strengthened our communication and coordination with Central departments (ministries) and commissions, we held three coordination meetings at the ministry level, and established a joint action mechanism (加强与中央部委的沟通协调，3次召开部委层面协调交流会，建立联动机制 ).
At the central Party level, clearly coordination occurs at the level of broad policy through the Central Political Legal Commission and the Building Ping’an (peace and safe)-China Coordination Small-Group about which Li Ling wrote last year. Other coordination occurs through leading small group offices (工作领导小组办公室). I describe one below. This blogpost will focus on State Council Inter-Ministerial Joint Conferences because it is through those that much of the more specific coordination occurs. Thankfully for the researcher, State Council transparency is quite good and I found many approval documents for Inter-Ministerial Joint Conferences. From my research thus far, the SPC participates in many Inter-Ministerial Joint Conferences established by the State Council. I note that some other jurisdictions have Inter-Ministerial Council Conferences as well, not involving the judiciary. In some instances, ministries or commissions of the State Council create coordination mechanisms with the SPC, while the SPC initiates some. Some coordination is done more formally on an as-needed basis, as Liu Zheng mentioned and that requires separate research. It is understood that within the framework of the formal structures, interaction and coordination occur at the staff level.
Leading Small Group Coordination Offices
As mentioned above, the Party Center has established some leading small group coordination offices to coordinate specific central Party and state organs policies and measures. Because of the nature of the matter, the SPC is a member. One example is the following office.
The Pursuit of Fugitive [Officials] Pursuit of Stolen Assets Working Office of the Central Anti-Corruption Coordination Leading Small Group (中央反腐败协调小组国际追逃追赃工作办公室), established in 2015, of which the SPC is a member. The 2017 judicial interpretation on asset recovery is likely related to the SPC’s work in this group. The SPC is involved in the yearly Skynet operation. Through this office, the SPC participates in related campaigns under this mechanism, such as a 2015 one against offshore companies and underground banks.
Inter-Ministerial Joint Conferences
The State Council has established many Inter-Ministerial Joint Conferences (部际联席会议), in which other Central-level ministries take the lead (牵头) and the SPC is one of many other Party and state organs involved. For those unfamiliar with Inter-Ministerial Conferences in China, the Office of the Central Staffing Commission has an authoritative explanation (amended Google translate):
The inter-ministerial joint conference is established to negotiate and handle matters involving the responsibilities of multiple departments of the State Council. It is established with the approval of the State Council. The member units communicate in a timely manner and coordinate differing opinions. It is a work mechanism for enabling the smooth implementation of a task (responsibility). It is the highest-level joint meeting system of administrative agencies. The establishment of inter-ministerial joint conferences should be strictly controlled. For matters that can be resolved through coordination between the sponsoring department and other departments, inter-ministerial joint conferences are generally not established. The establishment of inter-ministerial joint conferences must be submitted to the State Council for approval. The lead department shall ask for instructions, clarify the name, convener, lead unit, member unit, work tasks and rules, etc., and submit it to the State Council for approval after approval by relevant departments. After the task of the inter-ministerial joint conference is completed, the lead department shall submit an application for cancellation, stating the establishment time of the inter-ministerial joint conference and the reasons for its cancellation, etc., and submit it to the State Council for approval after the approval of the member units. The newly established inter-ministerial joint conference which is led by the leading comrades of the State Council, may be entitled ” State Council… ” , and the other joint conferences are collectively referred to as ” inter-ministerial joint conferences . ” The inter-ministerial joint conference does not engrave a seal or formally issue documents. If documents must be formally issued, the name of the leading department and the seal of the leading department may be used, or the relevant member units may jointly issue a document.
SPC and Inter-Ministerial Joint Conferences
Sometimes the SPC is a founding member of an Inter-Ministerial Joint Conference. In other situations, it is recognized that the expertise of the SPC is needed and the SPC is invited to join after the Inter-Ministerial Joint Conference has been in operation for several years. Some examples are:
The Inter-Ministerial Joint Conference on the Implementation of the Intellectual Property Strategy of the State Council, headquartered at the China National Intellectual Property Administration, of which the SPC is one of many members. It is directed towards achieving the National Intellectual Property Strategy and unusually, has its own website. A previous version was established in 2008, but that was superseded in 2016 when the State Council revamped the Inter-Ministerial Joint Conference, likely to better achieve China’s Intellectual Property Strategy. Justice Tao Kaiyuan is designated as a member of the Joint Conference on behalf of the SPC. The Joint Conference meets from time to time and issues an annual plan, allocating responsibilities to members according to their authority. Among the matters allocated to the SPC in the 2020 plan is promoting three-in-one hearing of intellectual property cases and drafting a Guiding Opinion for Three-in-one Work ( 深入推进知识产权审判“三合一”工作，制定“三合一”工作指导意见。（最高人民法院). ” (For those unfamiliar with Three-in-one hearings,” they refer to integrating jurisdiction over civil, administrative and criminal intellectual property cases. It is understood that discussions occur at staff level to coordinate and promote policies.
The Inter-Ministerial Joint Conference on Combating Illegal Plant and Wildlife Trade (打击野生动植物非法贸易部际联席会议), established in 2016. The SPC (and the Supreme People’s Procuratorate (SPP)) was invited to join the conference in 2020., which likely means that the organizer, the State Forestry Administration, did not realize that the expertise of the SPC and SPP were necessary. The SPC is one of 27 Central-level organs. It is likely that the 2020 Guiding Opinions on Punishing the Illegal Trade of Wild Animals issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice is a product of this Inter-Ministerial Mechanism.
The Inter-Ministerial Conference on Money Laundering (反洗钱工作部际联席会议制度). The State Council established it in 2004. The People’s Bank of China takes the lead. National Money Laundering Strategies are drafted under its auspices. The role of the SPC is to supervise and guide the trial of money laundering crimes and formulate judicial interpretations in a timely manner in response to relevant legal issues encountered (督办、指导洗钱犯罪案件的审判，针对审理中遇到的有关适用法律问题，适时制定司法解释)It is understood that at a staff level, discussions take place regularly, and the SPC has issued several judicial interpretations as a result.
As mentioned in a blogpost in 2020, in 2017 the State Council approved an Inter Ministerial Joint Conference on the Popularization of Law, with Zhang Jun, then head of the Ministry of Justice, as head and the SPC as one of the parties.
SPC established coordination mechanisms
The SPC establishes coordination mechanisms with other government and Party departments such as:
The family trial method and work joint conference mechanism (家事审判方式和工作机制改革联席会议), established in 2017 with Central Political-Legal Commission consent; and
Under the framework of Inter-Ministerial Joint Conferences, specific coordination mechanisms may be established. One likely product of ongoing policy discussions under the framework of the Intellectual Property Inter-Ministerial Joint Conference discussed above was the January 2021 establishment of a mediation coordination mechanism between the SPC and the China National Intellectual Property Administration.
The legal basis of coordination appears to be Article 2 of the Organic Law of the People’s Courts in which the courts are called upon to “guarantee the smooth progress of the building of socialism with Chinese characteristics.”
In the New Era, we can expect to see more and more coordination by the SPC, much of it invisible to those of us outside the system. It appears to be a recognition of the technical competence of the SPC in resolving a broad range of technical issues required to be resolved in furtherance of the governance of the country. The State Council and its ministries and commission need the SPC’s expertise to deal with a large variety of legal issues–criminal, civil, administrative, enforcement. The SPC coordinates with other central Party and state organs because it needs them to resolve specific issues. Given China’s state-run governance model, establishing mechanisms to better coordinate and promote national strategies and targets, and better draft policies and measures are considered an efficient way to accomplish governance targets and serve the needs of the Party and country.
The new Chinese Civil Code will become effective on 1 January 2021, with broad impacts on Chinese law in and out of China. As mentioned by most of the better law firms commenting on the Civil Code, the Supreme People’s Court (SPC) will fill in some of the broad principles through judicial interpretations. Other regulatory ministries will do so for specific issues, such as land and property mortgages. But the Civil Code involves a great deal of work behind the scenes at the SPC, so that 1 January 2021 sees a seamless transition from the separate bodies of Contract Law, Inheritance Law, etc. to the Civil Code and inconsistent judicial interpretations are no longer in effect. A recent article in one of the SPC’s media outlets by the group in charge of the work gives more detail to the work that I flagged this in May, when I gave comments on the SPC’s major research topics on Chinalawtranslate.com::
the SPC will support the Civil Code by issuing transitional arrangements & judicial interpretations. Over the years, the SPC has been issuing judicial interpretations and other documents relating to the areas of law that will form the Civil Code, particularly in the area of personality rights (Portraiture, Personal Information, Privacy, Genetic Information rights etc.), areas where legislation has been lacking. So work will be needed to review the previous documents in a big “housecleaning exercise”. The articles [in the Civil Code] on personal information, privacy, etc. are not very detailed, although they are important to individual people. Then the question is here, what protections will be provided by forthcoming judicial interpretation(s). This will fill in some of the abstract statements in the Civil Code.
The article by the Leading Small Group Office reveals the following:
Civil Code work is high priority as it is work that designated by the Party Center (literally, 党中央决策部署在人民法院得到不折不扣贯彻落实). General Secretary Xi Jinping has pointed out that related judicial interpretations need to be improved timely, so the Civil Code, related legal provisions and the spirit are consistent ( 要及时完善相关民事司法解释，使之同民法典及有关法律规定和精神保持一致). But the focus in this post is not on the politics, but the practicalities of implementing the Civil Code in China).
The SPC has created a leading small group to lead an institution-wide team, entitled the Leading Small Group for Implementing Civil Code Work 民法典贯彻实施工作领导小组 (Leading Small Group). SPC President Zhou Qiang heads the Leading Small Group. I’ve not yet identified who is heading the Leading Small Group’s Office (最高人民法院民法典贯彻实施工作领导小组办公室).
The Leading Small Group Office [presumably] assembled a Task Breakdown Table( “切实实施民法典”任务分解表”). The work involved includes: reviewing 591 related judicial interpretations and 139 guiding cases as well as SPC Gazette cases. It seems to involve significant project management skills. At the SPC level, the Leading Small Group’s Office worked with the judicial interpretation department (the Research Office, as far as I know) and assigned responsibilities by the the principle: “whoever drafted is responsible”. That means that the #1 Civil Division would have reviewed interpretations related to family law issues (marriage and inheritance law, for example), and the #2 Civil Division would have reviewed company law and other related issues for which it is responsible. According to the article, this review work was basically completed by the end of September.
The criteria for review are as follows: if the content of an old judicial interpretation has been completely adopted by the Civil Code, then the judicial interpretation will be abolished when the Civil Code becomes effective. If a current judicial interpretation completely conflicts with the Civil Code, the current one will be scheduled to be abolished. Another scenario is that the Civil Code and the current judicial interpretation are inconsistent, but it is worth amending it. A last category is where the Civil Code has new provisions for which the SPC lacks related judicial interpretations. That goes on the SPC’s “to-do” list. For the many people interested in Chinese civil law, please be aware that the Leading Small Group Office has published a related set of books 《中华人民共和国民法典理解与适用》（全6卷11册）
The article does not further mention the review of guiding cases and SPC Gazette cases, but presumably the same process applies to guiding cases and SPC Gazette cases. As the SPC’s Research Office is responsible for guiding cases, I expect that a careful review of existing cases was the responsibility of that office.
The next step is to consolidate the long list of judicial interpretations that have been affected and the recommended solution in a list and accompanying report for eventual review and approval by the SPC’s judicial committee . I would expect that there is a separate list for guiding cases that need to be abolished. I would expect that the list of cases that may need to be abolished would also require an accompanying report.
As I have written on this blog previously, local courts issue local court guidance under different titles. In a blogpost last year, I mentioned that the SPC has/will require local courts to report guiding rules applicable within their jurisdictions to the SPC. Part of the work of the SPC in preparing for the Civil Code is to guide and supervise local courts to carry out a similar exercise to the SPC and report the results to the SPC. Presumably some number of persons in the Leading Small Group Office are responsible for monitoring and coordinating with local higher people’s courts. It is likely that the local courts are also discussing issues with their counterparts at the SPC. We should expect each local high court (and intermediate courts, such as Shenzhen) that issue local court guidance to issue lists of local court guidance that will be abolished or amended as of 1 January, to ensure a uniform approach by the Chinese courts as of 1 January.
On the agenda for 2021 is amending the approved causes of action (案由) to be consistent with Civil Code, as the Civil Code will provide for new types of civil actions. The SPC has designated persons to work on this (presumably on the “whoever is responsible principle”) and the plan is for work on drafting new causes of action to be completed by the end of 2021.
Another issue is transitional arrangements and retroactivity, that is, what law should be applied for cases that arose before the Civil Code was effective or were already in the court system when the Civil Code becomes effective. These are “universal” issues, not confined to China ( a quick search turned up relevant articles from the United States, Germany, England and Wales, among others). The SPC undertook surveys within the court system on these issues and held three internal workshops in Guangdong to solicit views of local judges, particularly on commercial law-related issues.
An initial draft of the first judicial interpretation of the Civil Code (part 1) is in place, with the provisional title of “Supreme People’s Court Interpretation Concerning the Some Questions on the Application of the Civil Code of the People’s Republic of China (1) 《最高人民法院关于适用〈中华人民共和国民法典〉若干问题的解释（一）] 》”. It will be sent to “relevant departments” to solicit their views. The relevant departments are not listed, but there would be many of them, including the Ministry of Land and Resources, Ministry of Housing and Urban-Rural Development, and Ministry of Civil Affairs. Soliciting the views of the general public is not mentioned.
As for specialized judicial interpretations on critical issues such as property, contract, personality rights, family law issues, inheritance, and tort law (including sexual harassment, presumably), those are already “cooking” on the SPC’s judicial interpretation “stove.” That is, the divisions of the SPC responsible are researching and drafting related issues, so that soon after the Civil Code becomes effective, old judicial interpretations are amended and new ones are issued. The divisions are taking the following three approaches–codifying prior judicial interpretations concerning a particular issue or issues, so that there is a single relevant judicial interpretation. The lower courts and the Chinese legal profession (and foreign parties as well) would find this approach helpful, as the relevant legal principle would be clearer. A second approach would be to amend an existing judicial interpretation. The SPC plans to do this for certain interpretations, to provide timely guidance to the lower courts, to better ensure uniformity of court decisions. Third, for new areas of law, such as personality rights, relevant judicial interpretations will be issued “at an appropriate time.”
We can expect the SPC to further guide the lower courts (and the legal profession) on personality rights issues through “typical cases” and guiding cases or guidance cases issued by divisions of the SPC, before the SPC issues a related comprehensive judicial interpretation.
The SPC is also working on improving its punitive damages system in intellectual property rights cases and when the timing is right, will work on a judicial interpretation.
On environmental and natural resource issues, the SPC is working on a judicial policy document, which is expected to be issued before year end. I surmise it is one of the major tasks of the SPC’s Environmental and Natural Resources Division.
The SPC will adjust its quality assessment standards for civil cases, and is working on related measures (研究制定评估考核办法文件)，which will involve increasing use of professional judges meetings and judicial committee meetings as a way of ensuring uniformity of court decisions.
The SPC’s guidance will promote diversified dispute resolution, (linked to the Fengqiao experience), which will have different implications in commercial areas of law than family law.
The SPC is still working on its judicial interpretation involving civil/criminal cross-over cases and has done several rounds of consultations with the “relevant departments,” presumably including the Ministry of Public Security and Supreme People’s Procuratorate. This is a long-standing issue and difficult one. This issue has been repeatedly raised by private entrepreneurs and their lawyers, among others. This issue is also “universal,” not confined to China.
Other matters for the SPC include ongoing and future training, publicity, research, and publication concerning the Civil Code. The training is already ongoing within the SPC and lower courts on the Civil Code. The SPC is holding a series of training sessions conducted by experts. Additionally, the SPC is also tasked with issuing Civil Code-related publicity aimed at the general public. The SPC’s professional publications will do their part and publish Civil Code related articles research and practice oriented articles. Although it isn’t specifically stated, I surmise that it is likely that next year’s SPC research agenda will include Civil Code related issues.
I hope that the Leading Small Group Office takes heed of the recently published comments of retired SPC Judge Cai Xiaoxue: when formulating judicial interpretations, various opinions should be humbly listened to in order to avoid errors or infeasibility of rules to the greatest extent. In the implementation of judicial interpretation, only by frequent self-examination and listening to different voices can errors be discovered and corrected, and fairness and justice can be maintained to the utmost extent (“在制定司法解释时，应当虚心听取各种不同意见，才能最大限度地避免规则错误或者不可行。在司法解释施行过程中，只有常常自省，注意倾听不同声音，才能发现错误，纠正错误，才能最大限度地维护公平正义”。).
Persons with comments or corrections, please use the comment function or email me.
This week the Supreme People’s Court’s (SPC’s ) media outlets are carrying this 10 September report of the Central Inspection Group (CIG) #4’s mobilization meeting to inspect the SPC’s Communist Party group. The same group is also inspecting the Supreme People’s Procuratorate (SPP). Senior leaders (that with a bureaucratic rank of deputy bureau chief and above 副局级以上干部) of the SPC and its institutions attended in person (as well as related personnel). Those in the SPC’s six circuit courts (巡回法庭) attended by videolink. Zhao Fengtong is heading (this English biography is outdated) the inspection group. He gave a speech at the mobilization meeting. President Zhou Qiang, who chaired the meeting, spoke as well. A search of Caixin’s website reveals that Zhao Fengtong has headed many such inspection groups. News of the inspection was announced on the Central Commission for Discipline Inspection (CCDI) website last week and other media outlets. The inspection is part of the current round of CIG inspections, which total 37 Party, government, and other entities. A CIG group last inspected the SPC almost three years ago. The previous mobilization meeting and inspector results were previously mentioned on this blog.
The China Law Society (a mass (government-organized non-government organization)) and the Ministry of Justice are being inspected in this round of inspections. Each has held its own mobilization meeting.
The inspection appears to be one example of the strengthening of Party leadership in the SPC. The inspection appears to be linked to language in earlier documents to strengthen the leadership of the Communist Party (加强党的领导) and to strengthen Party political construction (党的政治建设). The Party Center issued a document on political construction earlier this year.
The remarks that Zhao Fengtong made are consistent with the document on political construction. Some of the points that Zhao Fengtong and Zhou Qiang made are highlighted below (along with my brief comments in italics):
the SPC, as a central organ, assumes a major political responsibility and glorious historical mission (重大政治责任和历史使命). This phrase is to be found in SPC policy documents supporting important government initiatives;
Inspections are political supervision and a comprehensive political examination of the implementation by the Party Group of a Central and national organ of its political responsibility and duties (巡视是政治监督，是对中央和国家机关党组织履行政治责任和职责使命情况的全面政治体检). The term “political inspection” appears to be used frequently since earlier this year–the report on the previous mobilization meeting did not use this term.
The focus is on inspecting how the SPC is implementing the Party line, direction and policies and the major decisions that the Party Center has announced (重点监督检查落实党的路线方针政策和党中央重大决策部署情况);
The inspection will search out political deviance (深入查找政治偏差). This phrase is found in the document on political construction–“put efforts into discovering and correcting political deviation” (着力发现和纠正政治偏差).
President Zhou Qiang stated that the Party group fully supports the work of the inspection group, will correct the problems found, will not delay or blame. He mentioned that the institution will combine support for the work of the inspection group with current work (要把配合做好巡视工作与抓好当前工作结合起来). The SPC is a court, to whom the public looks for justice. Informal inquiries indicate that the SPC has an even larger civil and commercial caseload this year. Although earlier this year it raised the minimum amount in dispute for cases that it will take, the current state of the economy means that the SPC is facing a large increase in civil/commercial disputes. Domestic cases have a six-month deadline for resolution, placing a great deal of pressure on judges to resolve them timely, either by encouraging settlement or issuing judgments (or rulings).
As in the previous round, the CIG is inspecting the SPC for approximately two months. The inspection group has provided an email and telephone number for those wishing to provide further information.
Background on CIGs and how they operate can be found in a 2016 New York Times article (focusing on the Ministry of Public Security’s inspection) and this scholarly article by Professor Fu Hualing of the University of Hong Kong’s law faculty.
I recently participated in an academic conference in which one speaker discussed Chinese judicial documents (other than judicial interpretations). The speaker’s view was very critical of them, a view shared by a good number of academics in China. A recent law review article published in a US law journal mischaracterized at least some of these documents. I have my own views and understanding of what these documents mean, based on many years reviewing these documents and long discussions with knowledgeable people “who cannot be named” and whose help can only be indirectly acknowledged. I have discussed SPC judicial documents in an earlier blogpost. I also discuss them in my book chapter on judicial transparency, and book chapter on the Supreme People’s Court’s (SPC) policy document on free trade zones, the Opinions on Providing Judicial Guarantee for the Building of Pilot Free Trade Zones (最高人民法院關于為自由貿易試驗區建設提供司法保障的意見 FTZ Opinion). This blogpost melds excerpts from those book chapters.
It is a fact that the Supreme People’s Court (SPC) issues a broad range of documents that guide the lower courts in addition to its judicial interpretations. The SPC creates and transmits to the lower courts new judicial policy in the form of an “opinion” (意见), which is also a type of Party/government document. This same term is used for documents jointly issued by the SPC and institutions not authorized to issue judicial interpretations. This blogpost focuses solely on SPC policy documents.
The SPC classifies opinions as “judicial normative documents” (司法文件 or 司法规范性文件(the title of this Wechat public account) and sometimes judicial policy documents” (司法政策性文件). As I’ve written before, this fuzzy use of terminology is not unusual. An (authoritative) follower has proposed using the English translation “judicial regulatory document” for 司法规范性文件. An authoritative person (who cannot be named), concurred with the follower’s proposal. Those with views on the translation point should use the contact function or contact me by email.
These documents are issued with the identifier “法发” (fafa), indicating that they have been approved by the judicial committee of the SPC or one or more senior SPC leaders. Transparency is better than before (and the SPC has issued documents encouraging greater transparency) but there is no strict publication requirement, unlike judicial interpretations.
The FTZ Opinion is an example of how the SPC supports the Party and government by issuing documents to support important initiatives. This is a subject that I have written about on this blog before. These SPC policy documents signal an evolution of judicial policy, establish new legal rules and direct the lower courts. Lower courts implement these measures in various ways, including in their court judgments or rulings and to further implement SPC judicial policy documents. Local courts may issue implementing guidance, as SPC policy is intended to be a framework under which local courts issue more specific measures to deal with specific local issues.
The FTZ Opinion signals evolving judicial policy to FTZ courts in a number of areas, including on civil and commercial law issues. For example, it states that courts should
support FTZ finance leasing companies and should respect the agreement of cross-border parties regarding jurisdiction and governing law. It states that a finance lease contract shall not be determined to be null and void because relevant procedures had not been performed.
The drafting of these judicial policy documents, such as the FTZ Opinion, follow a drafting process similar to judicial interpretations. The usual practice in drafting judicial interpretations is for the SPC to engage in extensive research and fieldwork, consult with related institutions within the SPC and external institutions when relevant (another academic article stuck in the production pipeline will describe the process in more detail).
The drafting team for the FTZ Opinion engaged in several years of field work, established an FTZ Research Base in Shanghai, held a Judicial Forum for the Pilot Free Trade Zones, solicited the views of experts and local courts, in the areas where FTZs are located. The SPC’s #4 Civil Division, in charge of foreign and cross-border related civil and commercial cases and related issues, took primary responsibility for drafting the opinion. The reason that the #4 Civil Division took the lead was that much of the substantive parts of the FTZ Opinion relates to foreign trade, foreign investment, and cross-border arbitration issues. Earlier Shanghai local court guidance was incorporated into the FTZ Opinion. Once the draft was relatively advanced, it was circulated to other relevant areas of the SPC for comments. As the team of judges who led the drafting focus on cross-border civil and commercial issues, they sought comments on related issues from the Research Office, likely one of the criminal divisions and the administrative division. Consistent with general judicial practice (and SPC rules), the FTZ Opinion was not issued for public comment. The drafting of the FTZ Opinion is one small example of the quasi-administrative way in which the SPC operates.
Rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but
that process is slow and cannot meet the needs of the lower courts. The lower courts need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization of legal rules. This is true for judicial policy documents in all areas of the law, not only in commercial law.
Wechat, as most people with an interest in China know, has become the preferred form of social media in China. The legal community in China has taken to it too.
For the observer, it enables us to learn about new issues (or aspects of issues) that we didn’t know existed, and (depending on the topic), hear viewpoints other than the official one, or at least read hints of dissenting views. Those with the Wechat app on their smartphone can subscribe to these public accounts but it is also possible to find some these articles through an internet search. Note that the “Mr. Yong” about whom I wrote in 2016 lurks on Wechat, so articles published may disappear, although they often reappear elsewhere.
Some are official accounts of government entities, including the courts and others are public accounts (公众账号) established by companies, law firms, universities, societies, other organizations, or individuals. In November, 2018 the Cyberspace Administration of China said that tightened management of internet content producers would be a “new norm,: and Tencent reduced the number of permitted corporate public accounts from five to two and individual accounts from two to one. More information on this development elsewhere.
Below is the first part of a guide to some useful law-related Wechat public accounts focusing on accounts related to the Supreme People’s Court (SPC) Please contact me through the comment function or email with additional suggestions.
The official Party and government accounts enable the user to keep current on the issues and latest Party and government position in that area of law–new policy, new legislation, and new reforms, or the official response to a current hot topic. The Central Political-Legal Commission has one, the Central Supervision Commission, as do both the SPC and Supreme People’s Procuratorate, as well as their local counterparts. Academic journals have a different audience that requires more nuance.
As I’ve written before, Party/government authorities use Wechat public accounts to reach out to a public that is moving away from traditional media to smartphones. Party/government policy is encouraging courts to do so. There is some but not complete overlap between articles that appear on an institution’s website and Wechat account. There is complete overlap when more political matters are involved, such as the latest important speech of a leader. Even some articles published in institutional public accounts may have a “netizen” tone and use netizen slang and images.
Official view of SPC; also republishes Xinhua articles
People’s Court Daily
Official view of SPC; also republishes Xinhua articles
Institute for Applied Jurisprudence
(since July, 2018, under the new institute director, the account has published fewer articles than previously)
Had previously carried accounts of conferences and academic talks, translations of foreign materials; other articles
China Applied Jurisprudence (academic journal)(from Sept., 2018)
Publishes excerpts from journal articles (recent article included: article on people’s assessors pilot project; also republishes other articles of interest to editor; translations of foreign materials, including an excerpt from “Building a Diverse Bench” (NYU Brennan Center publication)
Journal of Law Application (academic journal affiliated with National Judges College
Publishes excerpts from journal articles, some by judges, others by academics
Alternative Dispute Resolution Reform in China
Articles on alternative dispute resolution in China and foreign experience
Database Faxin (affiliated with the People’s Court Press)
Case analysis, analysis of cases on specific issues
China Trial (journal)
Excerpts from articles in the journal
Excerpts from articles in the journal
Case Research Institute of National Judges College
Case analysis, excerpts from its academic journal (Journal of Law Application (Cases))
SPC Information Center
Reports on informatization of courts
Administrative enforcement and administrative trial
Articles related to administrative litigation & enforcement
National Judges College
Official account; articles reporting on the National Judges College & its local branches
Articles related to the people’s assessor system & its reforms
Several SPC judges and SPC officials have Wechat public accounts. They have obtained approval to have them. Among them are:
Individual affiliated with SPC
He Fan (何帆), head of the planning department of the SPC’s Judicial Reform Office
Yu Tongzhi (于同志), judge of SPC #2 Criminal Division, editor of 刑事审判参考
Excerpts from the journal, articles on criminal law and criminal procedure issues (some republished), including original articles by Judge Yu himself, generally on broader criminal law issues.
Wang Dongmin (王东敏), judge of the SPC #2 Civil Division
Issues of civil and civil procedure law
As a general (but not directed comment), if judges on the SPC express views on issues that may come before them, it would appear to raise issues similar to those that arise in the rest of the world–the propriety of extrajudicial writing–a sample of writings on this issue from other jurisdictions found here. Persons who can provide relevant information concerning relevant SPC ethics provisions, and restrictions in civil law rather than common law jurisdictions, please contact me.
The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work , analogous to the National People’s Congress (NPC) and its legislative plans. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here).
On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019) for which the SPC judicial committee’s had given project initiation/approval (立项) designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article). It appears to be the first time this type of document was publicly released (please contact me with corrections). If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.
(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the planned economy aspects of the way it operates.
The document classifies the 48 projects into three categories:
2018 year-end deadline;
2019 half-year deadline;
This post will discuss the projects in the second and third categories, the ones with deadlines in 2019.
From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.
As discussed in my previous blogpost, several of the interpretations listed for 2018 have already been issued. It is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation. Few if any interpretations in the area of criminal or criminal procedure law have been issued for public comment.
First half of 2019 deadline
Standardizing the implementation of the death penalty (规范死刑执行). Apparently this will focus on more setting out more detailed guidelines concerning how the death penalty is implemented, linked to the Criminal Procedure Law and the SPC’s interpretations of the Criminal Procedure Law.
This article on a legal website sets out the steps in implementation and notes that parading of the persons to be executed is prohibited (although this rule seems to be ignored in too many localities). A recent scholarly article provides some detail (in Chinese). It is possible that 2008 regulations on suspension of the death penalty will be updated. Responsibility of the #1 Criminal Division. Given the sensitivity of issues related to the death penalty, it is significant that the SPC leadership decided to make this list public, given that this interpretation is on the list.
2. Judicial interpretation on harboring and assisting a criminal. These provisions occur in various parts of the Criminal Law and are also mentioned in the organized crime opinion discussed in this earlier blogpost. Drafting responsibility of the #4 Criminal Division.
3. Interpretation relating to the protection of heroes and martyrs. With the incorporation of the protection of heroes and martyrs in the Civil Code and the passage of the Heroes and Martyrs Protection Law earlier this year, drafting of a related judicial interpretation was expected. Responsibility of the #1 Civil Division.
4.Interpretation on technical investigators in litigation. Responsibility of the #3 Civil Division) (IP Division). I look forward to Mark Cohen’s further comments on this.
5. Interpretation on the recognition and enforcement of foreign court judgments. This blog flagged this development last year. Judge Shen Hongyu of the # 4 Civil Division, who wrote this article on issues related to the recognition and enforcement of foreign court judgments, is likely involved in the drafting. Drafting responsibility of the #4 Civil Division.
6. Disputes over forestry rights, apparently an area with many disputes. The Environmental and Natural Resources Division is responsible for drafting.
8.Regulations on the consolidated review of normative documents in administrative cases. The Administrative Division is in charge of drafting this.
9. Regulations on the consolidated hearing of administrative and civil disputes, apparently related to item #22 in the previous blogpost. Responsibility of the Administrative Division.
10. Application of the criminal law to cases involving the organization of cheating on state examinations (linked to Amendment #9 to the Criminal Law). The Research Office is responsible for drafting.
11. Application of the criminal law to crimes involving network use and aiding persons in such crimes (cyber crimes). This article discusses some of the issues. The Research Office is responsible for drafting this.
End 2019 deadline
Jointly with the Supreme People’s Procuratorate, Interpretation on Certain Issues Related to the Application of Law in Criminal Cases of Dereliction of Duty (II), likely updating interpretation (I) in light of the anti-corruption campaign and the establishment of the National Supervision Commission.
Interpretation on limiting commutation during the period of the suspension of death sentences. See related research in English and Chinese. The #5 Criminal Division is responsible for this.
Interpretation on the trial of labor disputes (V), likely dealing with some of the most pressing labor law issues facing the courts that are not covered by the preceding four interpretations or relevant legislation. The #1 Civil Division is in charge of drafting.
Regulations on the hearing of administrative cases, likely filling in the procedural gaps in the Administrative Litigation Law and its judicial interpretation. The Administrative Division is responsible for drafting this.
Personal information rights disputes judicial interpretation, linked to the Civil Code being drafted. Implications for individuals and entities, domestic and foreign. Responsibility of the Research Office.
Amending (i.e. updating) the 2001 Provisions of the Supreme People’s Court on Certain Issues Concerning Application of Urging and Supervision Procedure, relating to the enforcement of payment orders by creditors. Responsibility of the Research Office.
The Supreme People’s Court (SPC) has a yearly plan for drafting judicial interpretations, as set out in its 2007 regulations on judicial interpretation work (I have not been able to locate a free translation, unfortunately), analogous to the National People’s Congress (NPC) and its legislative plans. Judicial interpretations, for those new to this blog, are binding on the SPC itself and the lower courts, and fill in some of the interstices of Chinese law (further explained here). On 10 July, the SPC’s General Office issued the document above. It sets out a list of 48 judicial interpretation projects for 2018 (with several for 2019). The document details the projects for which the SPC judicial committee had given project initiation/approval (立项), designating one or more SPC divisions/offices with primary drafting responsibility (this process to be detailed in a forthcoming article). It appears to be the first time this type of document was publicly released (please contact me with corrections). If so, it is a concrete step in increasing the SPC’s transparency (addressed in part in one of my forthcoming academic articles). The projects, deadlines, and some brief comments (some longer than others) follow below.
(“Project initiation”/”project approval” is a procedure well-known to those of us who have been involved in foreign investment projects in China, where it involves approval from the planning authorities, primarily for infrastructure projects, but is an initial procedure used by regulatory authorities of all types, Party and state. For the SPC, it reflects one of the “planned economy” aspects of the way it operates.
The document classifies the 48 projects into three categories:
2018 year-end deadline;
2019 half-year deadline;
From these we can see which projects are the highest priority and where the SPC sees gaping regulatory holes that need to be filled, reflecting its political-legal priorities. Often specific issues have already been on the agenda of the relevant division of the SPC for some time before they have been officially been approved by the SPC’s judicial committee.
Several of the listed interpretations have already been issued. The SPC has solicited public opinion at least one of these draft interpretations, and it is unclear which other drafts will be made public for comment, as the 2007 regulations do not require it to do so. Making this list known may put some pressure on the SPC to undertake more public consultation.
This post will discuss the projects in the first category only, with a follow-up post discussing the projects in the second and third categories.
30 projects with a 2018 year-end deadline
Regulations on the jurisdiction of the Shanghai Financial Court. The NPC Standing Committee decision required the SPC to do so and included some broad brush principles on the new court’s jurisdiction. As the SPC has announced that the court will be inaugurated at the end of August, this is likely to be the highest priority project. The Case Filing Division is in charge.
Regulations on pre-filing property protection provisional measures (关于办理诉前财产保全案件适用法律若干问题的解释 ), a type of pre-filing injunction. These regulations are for non-intellectual property (IP) cases, as item 18 below addresses provisional measures in IP cases (in which a great deal of interest exists in the intellectual property rights community, as these order can affect a company’s business). The Case Filing Division is in charge. These regulations could benefit from some market input.
Interpretation with the Supreme People’s Procuratorate on the Handling of Cases of Corruption and Bribery (II), likely updating the 2016 interpretation to reflect the establishment and operation of the National Supervisory Commission and addressing issues that have arisen in practice. Issues to be covered likely include ones discussed in issued #106 of Reference to Criminal Trial (the journal of the SPC’s five criminal divisions, mentioned here) . The #3 Criminal Division is in charge of drafting, but it is likely that the supervision commission will be/is one of the institutions providing input. As I have mentioned earlier, the SPC generally does not solicit public opinion when drafting criminal law judicial interpretations.
Judicial interpretation on the handling of criminal cases of securities and futures market manipulation. This is linked to the government’s crackdown on abuses in the financial sector (see this report on the increase in regulatory actions) and is linked to last summer’s Financial Work Conference. The #3 Criminal Division is responsible. It is likely the China Securities Regulatory Commission will provide input during the drafting process.
Judicial interpretation on the handling of cases involving the use of non-public information for trading (Article 180 of the Criminal Law). Guiding case #61 involved this crime. It is likely that the principle from the guiding case will be incorporated into this judicial interpretation, as frequently occurs. Again linked to the crackdown on the financial sector and again, it is a task for the #3 Criminal Division.
Judicial interpretation on the handling of underground banking (地下钱庄) cases. Large amounts of money are being whisked out of China unofficially. Linked again to the crackdown on the financial sector as well efforts to slow the outflow of funds from China, and likely the People’s Bank of Chin. Again, a task for the #3 Criminal Division.
Interpretation on challenges to enforcement procedures in civil cases, related to the campaign to basically resolve enforcement difficulties within two to three years. Drafting this is a task for the #1 Civil Division.
Interpretation on evidence in civil procedure. Important for lawyers and litigants, domestic and foreign. Drafting this is a task for the #1 Civil Division.
Interpretation on civil cases involving food safety. Food safety is an area in which public interest cases are contemplated. These cases have been politically sensitive. Drafting this is a task for the #1 Civil Division.
Interpretation on construction contracts (II). The initial interpretation dates back to 2004. These type of disputes generally involve a chain of interlocking contracts and often regulatory and labor issues. Some of the larger cases have been heard by the SPC. Drafting this is a task for the #1 Civil Division.
Interpretation on the designation of bankruptcy administrators. Issues surrounding bankruptcy administrators have been ongoing in the bankruptcy courts, as has been discussed in earlier blogposts. Drafting this is a task for the #2 Civil Division.
Regulations on the consolidating the bankruptcy of company affiliates, again an area where regulation is insufficient, posing issues for bankruptcy judges (as has been discussed in earlier blogposts). Drafting this is a task for the #2 Civil Division.
Regulations on the civil and commercial cases relating to bank cards. The drafting of this interpretation has been underway for several years, with a draft issued for public comment in June. There have been a large number of disputes in the courts involving bank cards. Drafting this is a task for the #2 Civil Division.
Interpretation on legal provisions relating to financial asset management companies acquiring, managing, and disposing of non-performing assets. The legal infrastructure related to non-performing assets is inadequate, as has been pointed out by all participants, including judges. The Shenzhen Intermediate Court has run several symposia bringing together leading experts from the market. Drafting this is a task for the #2 Civil Division.
Interpretation on the trial of internet finance cases (civil aspects), as existing judicial interpretations inadequately address the issues facing the lower courts. Drafting this is a task for the #2 Civil Division.
Judicial interpretation on the statute of limitations in the General Provisions of the Civil Code (just issued), which was the responsibility of the #1 and #2 Civil Divisions as well as the Research Office. The General Provisions changed the length of the statute of limitations.
Judicial interpretation on administrative cases involving patent authorization and confirmation. It appears to be the counterpart in the patent area of a 2017 judicial interpretation relating to trademarks. I look forward to “brother blogger” Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
As mentioned above, pre-filing injunctions in intellectual property cases (知识产权纠纷诉前行为保全案件适用法律若干问题的解释 ), a type of pre-filing injunction. There is great deal of interest in the intellectual property rights community concerning these injunctions, as these orders can affect a company’s business. I look forward to Mark Cohen’s further comments on this. Drafting this is a task for the #3 Civil Division.
Regulations on issues relating to the International Commercial Court. Those were the responsibility of the #4 Civil Division and the interpretation was issued at the end of June. See the previous blogpost for further comments.
Regulations on the scope of environmental and natural resources cases, with drafting responsibility placed on the Environmental and Natural Resources Division. These relate to current government efforts to improve the environment. I would anticipate that these would include provisions on cross-regional centralized jurisdiction, so that pressure from local government will be reduced. Several provinces have already introduced such guidelines.
Interpretation on compensation for harm to the environment, also with drafting responsibility placed on the Environmental and Natural Resources Division. This is related to an end 2017 Central Committee/State Council General Office document on reforming compensation for harm to the environment. Again, Drafting responsibility with the Environmental and Natural Resources Division.
Regulations on the trial of administrative agreements. There is a tension between the administrative and civil/commercial specialists, as reflected in the area of Public Private Partnerships (PPPs)(see this earlier blogpost). This has practical implications for both the domestic and foreign business community, as the government is seeking to expand the use of PPPs and avoid local government abuse of them. Drafting responsibility with the Administrative Division and the Ministry of Finance is likely to be providing input.
Regulations on administrative compensation cases, drafting responsibility with the Administrative Division.
Interpretation related to agency issues in retrial (再审) cases. With the many governance problems of Chinese companies, these issues frequently arise. Drafting responsibility with the Judicial Supervision Division.
Interpretation on the enforcement of notarized debt instruments. Lenders often use this provision to seek more efficient enforcement. This is related to the campaign to improve enforcement as well as government policy relating to the financial sector. This research report by one of Beijing’s intermediate court shows that asset management companies are often the creditors and the large amounts of money are involved. Drafting responsibility with the Enforcement Bureau.
Interpretation relating to the enforcement of cases involving company shareholding. Given the complexities of shareholding in China, including the frequent use of nominee arrangements, these are difficult issues for judges to deal with. See a recent presentation by one of the circuit court judges on this issue. Drafting responsibility with the Enforcement Bureau.
Regulations on reference pricing when disposing of property. This too is related to the enforcement campaign as well as efforts to clean up the enforcement divisions of the local courts by requiring more transparent procedures.
Interpretation on the Handling of Cases of Crimes Disturbing the Administration of Credit Cards (II), updating the SPC’s 2009 interpretation, found here. Responsibility of the Research Office, which can coordinate with criminal divisions involved as well as interested authorities such as the China Banking Regulatory Commission.
Interpretation on cases involving both civil and criminal issues. This is a longstanding issue, and with the crackdown on the private lending sector, this has come to the fore. Among the many issues include: if the defendant is criminally prosecuted first and assets are confiscated, how can affected borrowers or other parties be compensated. Drafting responsibility with the research office, likely involving several civil and criminal divisions.
Regulations on the implementation of the People’s Assessors Law. As the law and the follow up SPC notice are too general for courts to implement, more detailed rules are needed. The Political Department (it handles personnel related issues) and Research Office are involved in drafting.
See the next blogpost for a discussion of interpretation in the second and third categories.
At the end of June, the Supreme People’s Court (SPC) held ceremonies to mark the establishment of its international commercial tribunals (国际商事法庭)(this post will use the phrase “international commercial court,” or “CICC” as the official media are using both terms). The provisions establishing the international commercial courts went into effect on July 1. As I wrote earlier this year, political and technical requirements shaped the CICC, as will be explained below.
These (partial) comments do not set out an overview of the court, as that has already been done by several law firms (and there are likely to be more), including Zhong Lun (published on the Kluwer Arbitration blog) and Herbert Smith Freehills.
In my view, those drafting the structure of the CICC were constrained by Chinese law, the nature of the Chinese court system and related regulatory systems. Although some Chinese commentators have referred to the CICC privately as a “mini-circuit court,” the CICC incorporates innovations, some of which have not been recognized by commentators thus far and provisions from the latest round of judicial reforms. The brief judicial interpretation establishing the CICC leaves related questions unanswered, some of which I will raise below. I expect some of those questions to be gradually answered as regulations underpinning the CICC are issued.
The small team of judges and limited jurisdiction of the court are likely to mean that overall trends in Belt & Road dispute resolution are unlikely to be significantly affected by its establishment. As a court focused on international commercial issues staffed by some of China’s most knowledgeable judges in that area, the court is likely to have a positive effect on the competence of the Chinese judiciary regarding international trade and investment issues, particularly as the SPC leadership knows that the international legal community is monitoring the court’s operation. It is unclear from recent reports whether the SPC will allocate additional resources to support its operation, which to this outside observer would be a shortsighted approach to take, as even something as apparently simple as translating judgments into English (as appears to be the intention of the court) is time-consuming.
Structure of the court
From Judge Gao’s press interview earlier this year (the subject of that earlier blogpost, a full English translation of which is found on the CICC website,) it is clear that she and her other colleagues involved in drafting the judicial interpretation were well aware of international commercial courts that had been or were being established elsewhere in the world. This research was provided by the China Institute for Applied Jurisprudence, the SPC’s in-house think tank (briefly described in this earlier blogpost).
However, the political imperatives of establishing the CICC as a priority matter meant that the SPC was constrained by the realities of current Chinese law. Because judicial interpretations of the SPC cannot contravene the civil procedure, judges and other national law (National People’s Congress legislation) [and there appeared to be insufficient time and possibly appetite for promulgating legislation piloting exceptions to these provisions]. This meant that the language of the court could not be English, the procedural law had to be Chinese civil procedure law, and the judges had to be judges so qualified under current Chinese law.
Jurisdiction of the court
As has explained elsewhere, under Article 2 of its Provisions, the CICC has jurisdiction over five types of cases, three of which are rather flexible (cases under a higher people’s court jurisdiction that it applies to have the SPC hear; first instance international commercial cases that have a nationwide significant impact; any other international commercial cases that the SPC considers appropriate to be tried by the CICC). This enables the CICC to control its caseload, as the eight judges on the CICC are likely to have their existing caseload in the SPC division or circuit court in which they are working, plus major obligations in drafting judicial interpretation or analogous judicial guidance. I am personally unaware of cases in which a higher people’s court has required the SPC to hear a case within its jurisdiction (please contact me if you have such information) but it can be anticipated that a higher people’s court may prefer to rid itself of a difficult case (either legally or more likely institutionally) to avoid a mistaken decision.
Judges of the court
As has been noted elsewhere, the eight judges appointed to the CICC are all SPC judges, although Article 4 of the CICC provisions appears to permit qualified judges from the lower courts to be selected. Those provisions do not mention whether a selection committee (one of the current judicial reforms) was used to select the current CICC judges, or whether a selection committee will be used for future appointments. There are in fact experienced judges in some of the lower courts who are able to use English as a working language. However, the exigencies of needing to appoint judges in a brief period of time (and possible SPC headcount restrictions, after the SPC has cut headcount under the quota judge system) meant that all CICC judges are from the SPC. This means a number of judges are relatively junior.
The expert committee to be established (rules yet to be issued) is an innovation under Chinese court practice. Unlike many other major jurisdictions, the Chinese courts lack user committees or advisory committees. This could be a useful way of bringing international input before the Chinese courts in a formal way. although the usefulness of the institution may depend on how often the committee meets and how familiar its members are with the Chinese court system. Presumably acting as a mediator or providing an expert opinion on a matter of foreign law will be optional (further details to be revealed when those rules are issued). Some persons may prefer to provide general advice to the SPC rather than involve themselves in the specifics of a particular dispute.
Evidence before the court
The CICC will not require translations into Chinese of evidence, if the parties so agree, or require evidence to be notarlized and legalized. As I wrote previously, China has not yet acceded to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, so in Chinese court litigation, notarization and legalization of documents is often required., starting when a party files suit or when a foreign party responds. It is not clear whether the CICC will require notarization and legalization of foreign party authorization of counsel. It is an innovation possible within the constraints of current law, that the CICC will consider evidence even if evidence from outside of China has not been notarized and legalized. Notarization and legalization costs time and money and a great deal of effort. It is understood that China is considering acceding to the Hague Legalization Convention.
Mediation and arbitration linking mechanism
The mechanism to link mediation, arbitration and litigation is an important part of the judicial reform measures (mentioned in this blogpost on diversified dispute resolution). Which mediation and arbitration institutions will link to the CICC are unclear (and the rules for selecting those institutions), but the policy document underpinning the CICC refers to domestic rather than foreign or greater China institutions. The Shenzhen Court of International Arbitration and Hong Kong Mediation Centre have entered into a cooperative arrangement to enable cross-border enforcement of mediation agreements, so presumably, this is a model that can be followed for Hong Kong.
The CICC provisions do not add new content on the enforcement of their judgments. As this earlier blogpost mentioned, enforcement of its own (and that of Chinese lower courts abroad) and foreign court judgments in China is on the SPC’s agenda. As I have written (and spoken about) previously, China (with SPC participation in its delegation) has been taking an actively part in negotiations on the Hague Convention on the Recognition & Enforcement of Foreign Judgments, (the link includes the draft convention) and has signed but not yet ratified the Hague Convention on the Choice of Courts Agreements.
Borrowing beneficial ideas from abroad
It appears that the drafters of the CICC provisions considered some of the practices of Frankfurt High Court International Commercial Chamber in their draft: No translation of documents which are drafted in the English language (if there is consent); witnesses can be heard in English;and extensive use of video conferencing or other electronic means.
Some outstanding questions
Will the mediation and arbitration linking mechanism be able to link with jurisdictions outside of mainland China? Under Chinese law, preliminary measures (interim measures) such as injunctions, property or evidence preservation are not available for offshore arbitration. Will the CICC mechanism be able to change this, or will changes to current law be required, as seems more likely?
Will difficult issues before the CICC be referred to the SPC’s judicial committee or other institutions within the SPC? As I wrote about a year ago, the SPC has adopted new judicial responsibility rules, setting out guidance under which cases heard by a collegiate panel are referred to a professional judges committee or the SPC’s judicial committee. Query whether difficult cases that have been discussed by the entire body of CICC judges will be referred further. The CICC includes several of the SPC’s most knowledgeable judges on cross-border matters (as well as the head (chief judge) and deputy heads of the #4 Civil Division, the division focusing on cross-border/international matters). These details are likely to be worked out over time.
Will the two CICC courts have their own support staff? Will it have its own case acceptance office? Is the intention to give more work to existing staff, or will there be an increase in headcount to support the new institution? The CICC judges need resources to support their work, whether it be in translation or research assistance. If the consequence of the establishment of the CICC is to give additional work to existing personnel, it is not out of the question that someone involved may collapse from overwork. SPC President Zhou Qiang noted in his most recent report to the NPC that there have been deaths from overwork in the lower courts. Some of the Chinese courts’ most experienced and knowledgeable judges in the area of cross-border commercial law have been appointed to the court.
The establishment of the court and its English language website gives foreign outside observers a chance to monitor how a Chinese court deals with and decides commercial cases, creating even greater pressure on the SPC and a small team of its most competent international commercial judges.
In my view, the establishment of the CICC will not affect how highly sophisticated lawyers draft dispute resolution clauses for large-scale Belt & Road projects. Many of those lawyers will still draft clauses providing for offshore arbitration because of the New York Convention (and the corresponding arrangement between Hong Kong and the mainland) and some concern about Chinese arbitration institutions. I have personally found it is difficult to get an accurate grasp of what current practice is with Belt & Road related dispute resolution clauses, given the range of deals under the Belt & Road Initiative. It is difficult to predict how the CICC may change those practices. The CICC and its associated dispute resolution mechanism provide an alternative to existing dispute resolution mechanisms. Will it show itself to be a more attractive way to resolve international commercial disputes, efficient and cost-effective, while maintaining high quality? We will need to monitor how it develops.
Many thanks to those who commented on earlier drafts of this blogpost.
On the afternoon of 21 June, I had the honor (and the challenge) of giving a lecture as part of a lecture series (大讲堂) sponsored by the Supreme People’s Court (SPC)’s China Institute of Applied Jurisprudence (the Institute) (mentioned in earlier blogposts, here and here). Judge Jiang Huiling, to my right in the photo, chaired the proceedings. Professor Hou Meng of Peking University (to my left), one of China’s leading scholars of the SPC, and Huang Bin, executive editor of the Journal of Law Application (to Judge Jiang’s right) served as commentators.
The occasional lecture series has included prominent scholars, judges, and others from China and abroad, including Judge Cai Xiaoxue, retired SPC administrative division judge (and visiting professor at the Peking University School of Transnational Law), Chang Yun-chien, Research Professor at Taiwan’s Academia Sinica (a New York University SJD), and Professor Zhang Taisu of Yale Law School.
As can be seen from the title slide above. I spoke [in Chinese] about how and why I research the SPC and some tentative views on judicial reform. Preparing the Powerpoint slides and presentation involved work for me that was a counterpart to that of the drafters of President Zhou Qiang’s report to the National People’s Congress (NPC), considering what issues would be appropriate in the post-19th Party Congress New Era, and would hit the right notes with an audience of people involved with Chinese judicial reform on a daily basis.
I spoke briefly on how I became interested in China, Chinese law, and the Supreme People’s Court, as well as Harvard Law School and its East Asian Studies program (and Columbia Law School as well). I traced my interest in socialist core values back to when I was seven years old, because of the books (see a sample below) and photos my father brought back from a tour he led of American academics working in Afghanistan to the Soviet Union in the early 1960’s, and a fateful opportunity I had as a high school student to learn Chinese. I told the audience also of the meeting I had with Professor Jerome Cohen before starting law school. (In this interview with Natalie Lichtenstein, founding legal counsel of the Asian Infrastructure Investment Bank), I discovered that Professor Cohen gave many of us the same advice–“if you study Chinese law you can do something interesting”–and how his group of former students continues to be involved with China and Chinese legal issues in many different ways. I also made comparisons between the career paths of elite legal professionals in China with those in the United States.
Explaining my interest in the Supreme People’s Court, I told how a serendipitous book purchase, bicycle rides past the SPC, a group of people willing to share their insights, and a lot of hard work led to my initial interest in China’s judicial system and to my 1993 article on the SPC. I also told the story of the founding of this blog.
On judicial reform, for the most part, I summarized some of my prior blogposts. I concentrated on the first several reforms as listed in the SPC’s reform outline, particularly the circuit courts, cross-administrative region courts and other efforts to reduce judicial protectionism, the maritime courts, criminal justice related reforms, the evolving case law system, judicial interpretations and other forms of SPC guidance, and many other issues. However, some of the issues did not make it into the Powerpoint presentation. I concluded with some thoughts about the long-term impacts within China and abroad of this round of judicial reforms.
I was fortunate to have three perceptive commentators and also needed to field some very thoughtful questions from the audience.
The event was reported in the Institute’s Wechat public account and People’s Court Daily. Many thanks to Judge Jiang and his colleagues at the Institute for making the event possible, and Professor Hou and Mr. Huang for taking the time and trouble to come from the far reaches of Beijing to appear on the panel (and for their comments).
At China’s Arbitration Summit in late September, Liu Guixiang, Chief Judge of the #1 Circuit Court, called attention to a notice that the Supreme People’s Court (SPC) issued earlier this year to strengthen judicial review of arbitration. The notice (Notice concerning some questions regarding the centralized handling of judicial review of arbitration cases关于仲裁司法审件归口办理有关问题的通知) is linked to the likely increasing number of cases involving judicial review of arbitration matters, linked to the increasing number of arbitrations involving Chinese parties (and the One Belt One Road initiative) both in China and elsewhere in the world, including Hong Kong International Arbitration Centre. (The notice highlights data collection problems).
The notice, reproduced below, is not an SPC judicial interpretation. Unlike judicial interpretations, notices are not required to be published. It seems that the SPC itself has not officially published it, but several officialwebsites have published it, as have a number of Wechat accounts.
A quick search reveals that the notice drew on a 2014 study by the Guangdong courts summarizing the results of pilot projects (including Shenzhen) that the SPC commissioned, involving cooperation with the now independent Shenzhen Court of International Arbitration. As is usual, Guangdong and Shenzhen have led the way as pilot areas for judicial reform. The study highlighted a list of problems with the way lower courts review arbitration related issues, including lack of consistency in reviewing cases. The study also highlighted problems in tracking case data.
As Judge Liu also mentioned (as has this blog), the SPC is working on a comprehensive judicial interpretation on that subject). That judicial interpretation is still being drafted, with the #4 Civil Division of the SPC taking the lead.
A very rough translation and some comments written in italics follow. (Many thanks to an anonymous and well-informed follower of this blog for bringing the notice to my attention and for some thoughts.) Please call translation glitches/mistakes to my attention.
Supreme People’s Court
Notice Concerning Some Questions regarding the centralized handling of judicial review of arbitration cases
Fa (2017) #152
To the provincial, autonomous region, directly administered municipality higher people’s courts, People’s Liberation Army Military Court, Production and Construction Corps Branch of the Xinjiang Autonomous Region Higher People’s Court:
To try correctly judicial review of arbitration cases according to law and guarantee a unified yardstick for judicial decision-making, protect the legal rights of parties, promote the healthy and orderly development of arbitration matters and the establishment of a diverse dispute resolution mechanism, we notify the various levels of the people’s court handling judicial review of arbitration cases of the following:
I. The trial divisions (collegial panels) trying foreign-related commercial cases shall be the specialized trial divisions (below, “specialized trial divisions) responsible for undertaking the judicial review of arbitration as set out in this notice.
This means that SPC is requiring trial divisions (or collegial panels, in smaller courts) handling foreign-related commercial matters to be responsible for reviewing the arbitration related matters described in the next paragraph. It is a plus for competency/consistency in arbitration-related matters.
II. In cases in which a party applies to have the validity of an arbitration agreement recognized, cases in which application is made to cancel a domestic arbitration commission’s award, cases in which application is made to recognize (认可) and enforce a Hong Kong SAR or Macau SAR arbitration award, recognize (认可) and enforce a Taiwan area arbitration award, application is made to recognize (承认) and enforce a foreign arbitral award, shall be handled by the specialized trial divisions of each level of court.
This paragraph describes the types of cases covered by the notice–the types of judicial review of arbitration matters and that these cases should be handled by the specialized trial division of each level of court designated in the paragraph I. There is a difference in terminology (bolded above, but not in the original Chinese) when referring to the recognition of arbitral awards from Hong Kong, Macau, and Taiwan as distinguished from foreign arbitral awards, emphasizing that awards from these jurisdictions are considered part of “one country.” Notice that cases involving domestic arbitration awards or disputes over the validity of an arbitration agreement to submit a dispute to domestic arbitration are also to be reviewed by the specialized trial division. A big plus for consistency and competency in judicial review of arbitration matters.
When a specialized trial division, after review, has ruled to recognize and enforce a Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration award, recognize and enforce a foreign arbitral award, the enforcement shall be transferred to the enforcement departments for enforcement.
III. When the first instance court makes a ruling which relates to the validity of an arbitration agreement relating not to accept, to reject a filing or objection to jurisdiction, and a party disagrees with the ruling and appeals, the specialized trial division of the second instance court should handle it.
This provision channels appeals relating to arbitration matters to specialists in the second instance courts, again a plus for competency and consistency.
IV. Each level of people’s court should establish a centralized administrative platform for the judicial review of arbitration awards, to strengthen the informatized management and data analysis of cases regarding applications to confirm the validity of an arbitation agreement, cases regarding applications to cancel or enforce arbitration awards of our domestic arbitration institutions, applications to recognize and enforce Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration awards, cases regarding applications to recognize and enforce foreign arbitral awards, and cases relating to the judicial review of arbitration such as refusal to accept, reject the filing, or objection to jurisdiction and others relating to the confirmation of the validity of an arbitration agreement; the effective guarantee of the correct application of law and of a unified yardstick for judicial decision-making. The #4 Civil Division of the Supreme People’s Court and the People’s Courts Information Technology Service Center shall be specifically responsible for this work.
IV. This paragraph requires a platform to be established to enable better data collection of arbitration related cases. Data collection appears to be an ongoing issue for the courts. 2015 SPC rules on case file numbers (thank you to Chinalawtranslate.com for this translation), are aimed to create more consistency in filing numbers for cases, and will also be helpful in this process. Inconsistency in case files numbers was identified as a problem in the Guangdong study.) The SPC’s #4 Civil Division (in charge of cross-border civil and commercial matters) and the Information Technology Service Center are the ones responsible for ensuring this platform works. The notice does not require data results to be made public. The legal and professional public (in China and elsewhere in the world) would look forward to regular big data reports on this.
Supreme People’s Court
May 22, 2017
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One of the unexpected influences of the United States system on the Chinese courts is the Supreme People’s Court’s (SPC) elite internship program, instituted in 2015. (The German system of requiring law students to intern in courts, too, is an apparent influence). The word of mouth is that the SPC leadership noted that the US Supreme Court clerkships attracted top law students and wanted to do something similar in China.
The program is a small example of “foreign beneficial experience,” about which I wrote about earlier this year. The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision (as I wrote earlier):
Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.
Outstanding products of rule of law culture in the world shall be actively absorbed and used for reference, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果，要积极吸收借鉴，也要加以甄别，有选择地吸收和转化，不能囫囵吞枣、照搬照抄).
Unlike Supreme Court clerkships, which are done by recent law graduates, SPC interns are generally required to be students, generally at the master’s or PhD level. The SPC selects several dozen outstanding students (the number seems to vary) to participate in the sixth month program. They must be recommended by their law schools (each runs its own selection process)–see this notice by China University of Political Science and Law. Several of our School of Transnational Law Students are participated. Applications are made to the Political Department of the SPC (it handles personnel matters) rather than to individual judges. The program is part of the SPC’s outreach to educational institutions and efforts to create a more elite judiciary.
While most requirements are in line with internships in most parts of the world and the stress appears to be on outstanding academic qualifications, among the requirements for the program is having a firm political stand (政治立场坚定) (it seems to be standard for internships in Chinese government/or government affiliated institutions) and the application form asks about the political view of family members.
In 2017, preference was given to Beijing area law schools because no housing was provided, and from the lists of accepted interns, it is clear that more Beijing area interns are accepted. As of 2019, however, the SPC provided accommodations. For Beijing based students, it likely means a long commute from the law schools based in the suburbs to be at work in the early morning.
Each intern is assigned a mentor, generally a presiding judge (审判长), therefore judge with long years of experience. Interns are primarily assigned to the substantive/trial divisions (业务部门) of the SPC and also other SPC offices including:
It seems that many were confronted with being assigned to work in areas of law that they had never before encountered, or being involved in work they had never before done. Some worked on judicial interpretation drafting, many sat in on collegiate panel discussions of cases, assisted in case review, and assisted the teams of judges working on death penalty review while many helped their mentors with related research and administrative matters, finding their work reviewed meticulously, and spending long hours along with their (overworked) mentors. Given the highly theoretical orientation of Chinese legal education, particularly at the graduate level, the interns (and their mentors) likely encountered major challenges along the way.
The circuit courts, too are taking interns, although they each seem to have their own requirements. The #2 Circuit takes interns from the law schools in Northeast China, the＃6 Circuit Court from the Northwest provinces, the #3 Circuit from law schools within its Circuit, while the #1 Circuit Court has taken interns from the Shenzhen-based law schools (School of Transnational Law and Shenzhen University) as well as law schools in other parts of the country.
As part of its outreach to the academic community, the SPC also has a smaller program for legal scholars, seeking to attract elite academics. That program limited to Chinese nationals from Chinese law schools, who generally should not be over the age of 50! I look forward to the day when the SPC takes note of the “foreign beneficial experience” of the Federal Judicial Center, which has welcomed many Chinese judges over the years as Visiting Fellows. The program has no age restriction. The late Judge Zou Bihua, whom President Xi Jinping praised for guarding “equity and justice and was brave to face tough obstacles in judicial reform, [and] showed his loyalty to the Communist Party of China (CPC) and the people,” had been a Visiting Fellow in 2000. He is one of the foreign judges featured on the Federal Judicial Center’s Visiting Fellows webpage.
Most people who have commented (outside of China) on Supreme People’s Court (SPC) President Zhou Qiang’s March, 2017 report to the National People’s Congress (NPC) didn’t have the patience to read (or listen) much beyond the initial section, which mentions the conviction of Zhou Shifeng as indicating that the courts are doing their part to crack down on state subversion. It appears to be another in a series of colorless government reports. But for those with the ability (or at least the patience) to decode this report, it provides insights into the Chinese courts, economy, and society.
The report, which went through 34 drafts, is intended to send multiple signals to multiple institutions, particularly the political leadership, in the months before the 19th Party Congress.
According to a report on how the report was drafted, the drafting group (which communicated through a Wechat group to avoid time-consuming bureaucratic procedures) faced the issue of how to summarize the work of the People’s Court in 2016 correctly. The guidance from President Zhou on the report–it must:
fully embody the upholding of Party leadership, that court functions (审判职) must serve the Party and country’s overall situation;
embody the new spirit of reform, showing the (positive) impact of judicial reform on the courts and show the ordinary people what they have gained;
not avoid the mention of problems, but indicate that they can be resolved through reform.
Underneath these political principles, the operation of a court system with Chinese characteristics is visible.
Guaranteeing people’s livelihood rights & interests
The following section is entitled “conscientiously implement people-centered development thinking, practically guarantee people’s livelihood rights and interests.” It summarizes what the courts have been doing in civil and administrative cases, but it also signals their perceived importance in this national report.
President Zhou Qiang noted that the Chinese courts heard 6,738,000 civil (民事) cases, an increase of 8.2%. Although he did not define what he meant by civil cases, under Chinese court practice, it refers to the type of cases under the jurisdiction of the #1 civil division (see this earlier blogpost):
Real estate, property and construction;
Consumer protection; and
On labor cases, the report mentioned that the courts heard 473,000 labor cases. This is a slight decrease from 2015 (483,311) (although the report did not do a year on year comparison). The report signalled that the SPC is working on policy with the labor authorities on transferring cases from labor mediation, labor arbitration, to the courts. This was signaled previously in the SPC’s policy document on diversified dispute resolution. Articles on both the SPC website and local court websites have signaled the increasing difficulty of labor disputes, and the increase in “mass disputes.”
As explained in this blogpost, labor service disputes, relate to an “independent contractor,” but more often a quasi-employment relationship, governed by the Contract Law and General Principles of Civil Law, under which the worker has minimal protections. This year’s report did not mention the number of labor service cases. In 2015, the Chinese courts heard 162,920 labor service cases, an increase of 38.69%.
There was no further breakdown on the number of other types of civil cases, such as private lending or real estate cases. For these statistics, we will need to await any further release of big data by the SPC. As blogposts in recent months indicate, private lending disputes are on the rise in economically advanced provinces and bankruptcy of real estate developers remains a concern.
This section also mentions criminal proceedings against illegal vaccine sellers, although the topic may be more appropriately be placed with the rest of the criminal matters, but likely because it is an issue that drew widespread public attention.
Echoing language in recent government pronouncements, the section heading mentions protecting marriage and family harmony and stability. The report mentions that the courts heard 1,752,000 family law cases in 2016, with no year on year comparison with 2015. The report mentions that the SPC has established pilot family courts (as previously flagged on this blog).
First instance administrative disputes totaled 225,000 cases, a 13.2% increase over 2015, but a tiny percentage of cases in the Chinese courts. The report highlights developments in Beijing and Shanghai (they are being implemented in Shenzhen, although not mentioned), to give one local court jurisdiction over administrative cases. According to the statistics (in Beijing, at least), this has led to a sizeable increase in administrative cases. The report also mentions the positive role that the courts can play in resolving condemnation disputes (this blogpost looked at problems in Liaoning).
Hong Kong/Macao/Overseas Chinese cases
As mentioned by Judge Zhang Yongjian, the report mentions that the courts heard 19,000 Hong Kong, Macau, Taiwan, Overseas Chinese related cases, and handled 11,000 judicial assistance matters with the three greater China jurisdictions. The report also mentions the recently signed arrangement between the SPC and Hong Kong judiciary on the mutual taking of evidence, a development that seems to have escaped the notice of the Hong Kong legal community.
Military related disputes
Unusually, the report mentioned that the local courts heard 1678 military-related cases and have developed systems for coordination between the civilian and military courts. These developments have been analyzed further in a blogpost on the Global Military Justice Reform blog.
Strictly governing the courts and institutional oversight
The following two sections of the report give a report on how the courts are upholding Party leadership, increasing Party construction within the courts, internal Party political life, and political study, all of which are in line with recent developments. Although these are stressed, this does not mean that professional competence is less valued. The increasing caseload, higher expectations of litigants, particularly in commercial cases, and increasing technical complexity of cases means that the SPC is in fact taking measures to improving professional capacity of the courts. This section also mentions courts and individual judges that have been praised by central authorities and 36 judges who have died of overwork.
On anti-corruption in the courts, the report mentions that 769 senior court officials have been held responsible for ineffective leadership, 220 have been punished for violations of the Party’s Eight Point Regulations. The SPC itself had 13 persons punished for violations of law and Party discipline (offenses unstated), 656 court officials were punished for abusing their authority, among whom 86 had their cases transferred to the procuratorate.
On institutional oversight, the report signals that the SPC actively accepts supervision by the NPC, provides them with reports, deals with their proposals, and invites them to trials and other court functions. On supervision by the procuratorate, the report revealed that the SPC and Supreme People’s Procuratorate are working on regulations on procuratorate supervision of civil and enforcement cases, a procedure sometimes abused by litigants.
2016 and 2017 judicial reforms
On 2016 judicial reform accomplishments, the following were highlighted:
case filing system;
diverse dispute resolution;
trial-centered criminal procedure system;
separation of simple from complicated cases;
people’s assessors‘ reform;
greater judicial openness;
more convenient courts;
improving enforcement (enforcement cases were up 31.6% year on year), including using the social credit system to punish judgment debtors.
The report mentions that among the targets for the courts is creating a good legal environment for the successful upcoming 19th Party Congress. That is to be done through the following broad principles:
using court functions to maintain stability and to promote development (for the most part mentioning the topics reviewed earlier in the report);
better satisfying ordinary people’s demands for justice;
implementing judicial reforms, especially those designated by the Party Center;
creating “Smart” courts; and
administering the courts strictly and improving judicial quality.
This last section mentions implementing recommendations required by the recent Central Inspection Group’s (CIG) inspection and Central policies applicable to all political-legal officials, before focusing on the importance of more professional courts, and improving the quality of courts in poor and national minority areas.
A few comments
It is clear from the above summary that the content of President Zhou Qiang’s report to the NPC is oriented to the upcoming 19th Party Congress and the latest Party policies. It appears that no new major judicial reform initiative will be announced this year.
It is likely too, that the selective release of 2016 judicial statistics in the NPC report also relates to messaging in line with the upcoming 19th Party Congress, although we know that the SPC intends to make better use of big data. We can see that overall, the caseload of the courts is increasing rapidly, including institutionally difficult cases (such as bankruptcy and land condemnation), which put judges and courts under pressure from local officials and affected litigants. In the busiest courts, such as in Shanghai’s Pudong District, judges will be working extremely long hours to keep up with their caseload, and the impact of new legal developments. It appears (from both the report and the results of the CIG inspection) that judges will need to allocate more time to political study. How this will play out remains to be seen. We may see a continuing brain drain from the courts, as we have seen in recent years.
Judge Zhang Yongjian, chief judge of the Supreme People’s Court (SPC)’s #4 Civil Division (responsible for foreign, Hong Kong, Macau, and Taiwan related commercial issues) previously featured on this blog, gave an interview to Legal Daily on the sidelines of the NPC meeting. This quick blogpost sets out some of the useful information from the interview:
He provided some data on the number of cross border cases:
Total number of foreign-related cases of all types (first, second instance, retrial, enforcement) heard and resolved: 25900, up 9.38%, among which 1061 were criminal,19200 civil and 3629 administrative, and about 2000 enforcement cases. The civil and commercial cases increased almost 11% compared to last year and accounted for about 75% of all foreign-related cases.
Total number of Hong Kong, Macau, Taiwan related civil and commercial cases closed: 27053 civil and commercial cases, Judge Zhang said that they accounted for 85% of all cases involving “greater China.”
The cases coming before the Chinese courts differ from the old trading and joint venture disputes, with many more cases involving demand guarantees, international factoring, private equity funds, stock options in companies listed overseas listed companies, cross-border telecommunications (fraud?), bonded trade disputes.
(As this observer has previously predicted), the number of cases related to One Belt One Road (OBOR) is increasing relatively quickly, while the number involving the United States, Britain, Germany, are decline. Cross-border project contracting and international logistics related cases are on the increase, as well as foreign-related intellectual property cases and maritime cases. Although Judge Zhang did not say so, it appears that many of these disputes are related to Chinese companies going out as well as OBOR, and may reflect inadequate documentation of the projects. The increase in maritime cases is linked to the ongoing decline in the shipping industry. Chinese maritime courts have heard cases related to the Hanjin bankruptcy as well as large numbers of cases involving ship crew.
Challenges for the Chinese courts in hearing cross border cases: encountering many “blank spaces” in Chinese legislation; conflict of laws with neighboring countries. Other ongoing bottlenecks for Chinese courts in hearing cross-border cases–service of process to overseas parties; obtaining evidence crossborder; determining facts that have occurred abroad; determining and applying foreign law.
Judge Zhang highlighted the solutions for the Chinese courts in dealing with the difficulties:
SPC issuing judicial interpretations and other judicial guidance;
establishing a case guidance and reference system for the lower courts, including model cases, guiding cases, and selected cases (i.e. as selected by the SPC), to guide and limit judges’ discretion.
The SPC selecting some commercial cases (relating to free trade zones, internet finance, cross border investment financing) with an international impact as a model.
To enable correct and just hearing of cases, the higher and lower courts should be in touch in a timely matter and establish a system for supervision before, during and after a case. [What this means for judicial autonomy in hearing cases and the appeal system is not said.]
On the goals for 2017, those include establishing an OBOR dispute resolution center (推进设立“一带一路”争端解决中心的建立，促进“一带一路”建设). This is likely linked to the May, 2017 OBOR Conference to be held in Beijing. Judge Zhang did not further specify, but it seems unlikely to mean establishing China’s own investment dispute resolution center. Perhaps this means increasing the role of Chinese courts in hearing cross-border cases involving OBOR jurisdictions.
Judge Zhang mentioned that he and his colleagues in 2017 have a variety of difficult issues that will be the subject of judicial interpretations or policy documents. This observer hopes that they will find it appropriate to consult the international legal community when drafting the following judicial interpretations that are on their agenda:
Enforcement of foreign civil and commercial judgments (possibly related the the Judgments Convention being negotiated under the auspices of the Hague Conference on Private International Law, and in the near term, to the enforcement of judgments through mutual judicial assistance treaties;
labor issues for ship crew;
damages in marine environmental cases;
jurisdiction in foreign-related cases, particularly civil and commercial cases;
judicial review of arbitration (this has been signalled for at least two years).
Judge Zhang signalled that they want to establish an English language website on foreign-related civil and commercial matters. It is hoped that this new website will post information in a more timely manner than the current SPC English language website. An (unsolicited) recommendation is to hire an expatriate editor (similar to Xinhua and other Chinese media outlets) to assist in delivering content that meets institutional requirements and interests the foreign user.
All these developments relate back to one sentence in the Fourth Plenum Decision:
Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security, and development interests.
Recently the Supreme People’s Court (SPC) took another step in making its Gazette accessible to a mass audience, by establishing an electronic platform accessible from the Supreme People’s Court website: www.gongbao.court.gov.cn.
What benefits does the Gazette webpage have for the user? They include easy:
Access to the cases published in the Gazette. As this blog has highlighted earlier. cases published in the Gazette, both selected judgments (裁判文书选登), cases decided by various trial divisions of the SPC and reflect their views on certain issues, and cases (案例), model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC, are considered quite persuasive, although not as authoritative as guiding cases. Those can be accessed through a full text search of the term being researched.
Checking of which lawyers frequently practice at the SPC, through searching “selected judgments.”
Following the careers of SPC judges. Below is a search for Huang Songyou, the disgraced SPC vice president:
Searching prior SPC reports to the NPC for key words, such as ”judicial reform“ or “state security.”
Searching historical judicial statistics, for certain terms–second instances returned results, while “death penalty review” did not.
Searching of judicial interpretations and judicial documents (policy and other SPC documents not considered to be judicial interpreations.)
In November, 2016, this blog reported on Central Inspection Group (CIG) #2 inspecting the Supreme People’s Court (SPC) ’s Communist Party group. Recently, CIG #2 came back with feedback on its inspection. SPC leadership was in attendance and circuit court leadership participated by videoconference. A rough translation of the problems identified follows:
During the tour, the inspection team found…some problems, mainly: “four consciousnesses” need to be further strengthened; political discipline and political rules are not implemented strictly enough; the leadership role of the Party group is insufficiently developed; there are some gaps in the coordination of the advancement of the system of judicial system reform; the implementation of responsibility system for ideological attitude (意识形态责任制落实不够有力); there are weak links in Party construction; organizational construction is not systematic enough; internal Party political life is not strict enough; relevance of ideological political work is not strong; some Party leading cadres’ Party thinking is diluted (有的党员领导干部党的观念淡漠); the role of the basic level Party organization as a fighting fortress is insufficient; comprehensive strict governance of the Party is not strong, the implementation of the central eight point regulations is not strict enough; formalism and bureaucratic issues still exist; tourism using public funds, abuse of allowances and subsidies still occurs; personnel selection is not standardized; cadre management is not strict enough; there are some areas of clean government risk.
The report revealed that some cases have been referred to CCDI and the Party’s Organization Department for further handling.
President (and Party Secretary) Zhou Qiang accepted the criticism and promised to deal with it. A separate report revealed that a rectification strategy has been adopted and an office established to implement measures to respond to the criticism.
It is difficult, if not impossible for this observer to have independent sources of information on the implementation of political discipline, political rules, and ideological work in the SPC.
It does appear (to the outside observer) from the constant flow of judicial reform documents, judicial interpretations, judgments (and rulings), and the many other documents released by the SPC, that the large number of SPC judges and other support personnel have been professionally extremely productive.
One criticism that I had heard before was about coordination in the judicial reforms. As to why some reforms were rolled out before others, the reasons are likely complicated and relate to what was ready to go and generally accepted. As to the implications one reform has on other reforms or the existing system, that is much more difficult to analyze, particularly if (as I suspect), the SPC’s judicial reform office does not have enough people to cope with the complexities of implementing judicial reforms in a highly bureaucratic state.
On the cases of violation of Party discipline revealed, it would appear that they were limited in number and apparently limited (for the most part?) to minor infractions, such as fiddling with subsidies and using government cars for private purposes. In a large bureaucracy such as the SPC, it seems fair to assume that a few infractions are likely to occur. It seems reasonable to surmise that these cases will be wrapped up swiftly, before the upcoming National People’s Congress session, and we will learn more about the specific cases.
The latest National People’s Congress Standing Committee (NPCSC) gave formal approval to the Supreme People’s Court (SPC) to establish four more circuit courts, located in Nanjing, Zhengzhou, Chongqing and Xian. The Leading Small Group on Comprehensive Reform had given the nod to the SPC and its preparations at the beginning of November, so approval by the NPCSC was a foregone conclusion. The four new circuit courts held ceremonies on 28 and 29 December to inaugurate their operations. This means that circuit courts now cover the entire country. As discussed in my earlier blogpost, these are actually subdivisions of the SPC rather than being separate courts.
This blogpost looks at:
What the official reports signal about the Chinese judiciary; and
What these circuit courts mean for the Chinese judiciary now and in the future.
Signalling in official reports
The official reports related to the circuit court celebrated the circuit court judges and the courts themselves as both “red and expert.”
In this report, on their meeting with Meng Jianzhu, secretary of the Central Political Legal Committee, a subheadline has him meeting with circuit court “cadres” (孟建柱在会见最高人民法院巡回法庭干部…), while the first line of the report uses the phrasing “judge and other staff” (全体法官和工作人员). Meng Jianzhu stressed that close [flesh and blood] ties between the Party and the people in the judicial field is the important mission of the Supreme People’s Court Circuit Courts the circuit courts are under the leadership of his committee], while at the same time saying that “we should adhere to the [policy] direction of the judicial system reform,..create a professionalized trial team…”
Other reports note that of the 54 judges, 41 have either master’s or doctorate degrees. An infographic with photos of the senior judges and a map of the jurisdictions of the circuit courts can be found here.
Are the circuit courts just reception offices for petitioners?
This blogpost will draw on the insights of Zhou Yibin, one of my students at the School of Transnational Law of Peking University, located in Shenzhen, where I am privileged to teach some of China’s best and brightest.
Analyzing the documents related to the establishment of the circuit courts, she comments the circuit courts’ function of “trying important cross-administrative civil, commercial and administrative cases to ensure justice is repeatedly emphasized, while diverting petitioners’ visits away from Beijing [as reported in this blogpost], reducing the workload for SPC .
Although the SPC knows that the pressure of petitioners’ visits is the direct reason to establish circuit courts, the SPC still wishes that the circuit courts will function more as courts to deal with the judicial localization [local protectionism] problem rather than another petitioners’ reception office. She notes that the huge pressure of dealing with petitioners visits and complaints with small elite teams, means that they are working very efficiently.
Statistics are available for 2015 for the #1 and #2 Circuit Courts, and in 2016 for the #2 Circuit.In 2015, the #1 Circuit Court accepted 898 cases and closed 843, while the #2 Circuit Court accepted 876 and closed 810. For the #2 Circuit Court, about half were civil and commercial cases (of which about 20% were transprovincial), while the remaining half was split between criminal and administrative cases. The #2 Circuit Court dealt with 33,000 petitioners, while the #1 Circuit Court dealt with fewer than 11,000. Through end September, 2016, the #2 Circuit Court had accepted 907 cases, and the number of petitioners had dropped considerably in 2016 to an average of 70-80 persons per day, down from almost 180 per day, with fewer petitioners complaining about injustices in litigation. It is understood that the number of cases accepted by the #1 Circuit Court has also increased in 2016 in comparison to 2015, although statistics are not yet available.
Zhou Yibin notes the following issues, among others:
First, limited by territorial jurisdiction and subject amount in controversy, there aren’t enough cross-jurisdictional cases for the circuit courts to try. She found that the head of the #1 Circuit Court had said the same.
Mid-career SPC judges may be reluctant to be assigned to the circuit courts, when they have family in Beijing.
Having circuit courts may lead to more inconsistencies among SPC judgments.
She wrote: the circuit courts are not likely to be an effective barrier to judicial local localization/protectionism. That local protectionism happens when the local courts abuse their adjudication power to protect local litigants’ interests. Judicial localization is the caused by the administration of judicial system and unconstrained exercise of administrative and political power.When it comes to judicial activities, local Party/government officials tend to unduly influence the judges by leaving notes or giving direct instructions when they want to protect local interests. That is exactly why in 2015, the general office of the Central Committee of the CCP and the general office of the State Council jointly issued a notice requiring judges and clerks keep a record if any officials interfere cases in any form [see this earlier blogpost].
From this aspect, when the real concern is abuse of power and lack of institutional design to rein power, judicial reform in any form, would only be a “back-end pain killer”, rather than real surgery that can directly solve the source.
She concludes: as to whether circuit courts should continue to exist, people who are pessimistic about circuit courts characterize it as window-dressing. They believe circuit courts would not be the real key to deal with judicial localization and there exist better alternatives to deal with petitioners’ visits than circuit courts; therefore, the circuit courts should be eliminated before it creates further inconsistency and chaos to judicial system.
Zhou Yibin thinks circuit courts should continue to exist for the following reasons.
First, in 2015, SPC altered the amount in controversy and lower the barrier for case acceptance. Therefore, we can expect circuit court to play a more important role in providing neutral venue so as to fight with judicial localization.
Second, there are other efforts to curb judicial localization collectively. At the same time with setting up circuit courts, SPC is also exploring to set up cross-administrative courts. Currently, this experiment is steadily progressing in Shenzhen, Shanghai and Beijing. This wave of judicial reform has just started, and we need to allow a little bit more time for the circuit courts and cross-administrative courts to grow, to engage in trial and error and to mature.
Third, aside from dealing with judicial localization, the circuit courts serve as pilot for SPC to improve the quality of its legal policy role by research into local legal issues and greater interaction with local legal communities. This is an important institutional function that is totally left out in the opponents’ objection. There are certainly institutional costs to maintain circuit courts, but we cannot ignore the institutional function of innovation that circuit courts serve.
I would also add to this that from the statistics provided above, the effect of the #2 Circuit Court’s work related to administrative cases can be seen in the reduction in the number of petitioners, particularly those complaining about injustices in the lower courts.
[For those who want to visit the circuit courts, detailed information about their location can be found here. As part of its efforts towards greater transparency and outreach to the foreign legal community, perhaps in the new year the SPC will publish clearer guidance on how foreigners can visit Chinese courts (although this is not likely to be a priority matter).]
On 22 December, the Supreme People’s Court (SPC) posted four big data reports drafted jointly by its Information Center and the Judicial Cases Research Center (affiliated with the National Judicial College).
The bar chart above, from the divorce report, shows the number of divorce cases heard in the courts in 2014-September, 2016, stating that the 2016 cases have increased almost 11% over the same time the year before. A subsequent chart shows that domestic violence as the cause for divorce in 27.8% of cases.
The reports appear to be products of the recently established SPC big data company. The analysis in the reports is restricted to bullet points, rather the more detailed analytical reports that are found on the websites/Wechat public accounts of courts and lawyers. (Suggestion to (any) readers from the SPC– translations of these reports would be a useful addition to the English version of the SPC’s website).
Anyone looking for more than current statistics and basic analysis is advised to search for more detailed analysis done by law firms, local courts, some of the legal media companies, and some of the other divisions of the SPC. On the topic of divorce, for example, an SPC judge published this analysis earlier this year, generally considered to be the most authoritative summary of the issues in Chinese divorce law.
The 4th Five Year Court Reform Plan (Court Reform Plan) flagged the SPC’s big data company and the stress that the SPC is placing on big data:
22. Deepen reforms of judicial statistics.Reform mechanisms for judicial statistics with the idea of “big data, big picture, and big service” as a guide; make a system of standards for judicial statistics that has scientific classifications and complete information, gradually building a model for analysis of empirical evidence that complies with the reality of judicial practice and judicial rules, and establish a national archive of court judgment opinions and a national center for big data on judicial information. (translation from @Chinalawtranslate)
The Court Reform Plan signals that the stress is on judicial statistics and using big data for internal use rather than for public access, as “complete information” is not provided to the public, with death penalty statistics the best-known example. Although judicial transparency is greater before (especially for those of us with a historical perspective), from time to time SPC media sources reiterate that judicial personnel are required to keep state secrets (as the Judges Law and other legislation require).
At the moment, transparency of judicial statistics and analysis varies greatly across provinces. Jiangsu Province’s high court, for example, has judicial statistics on its homepage:
Many law firms publish big data analysis of specific types of cases in their area of practice, such as this analysis of credit card fraud cases in Guangzhou (22% of the defendants were represented by counsel) and drug cases in Guangzhou (less than 15% represented by counsel). An analysis of drug cases in Guangdong (Jieyang, a center for the methamphetamine business) by the local court, has important insights into the routinization of criminal justice, the inadequacy of court judgments, and the way that the trial itself and the role of defense counsel (if hired) is marginalized.
Big data analyses can be found in a range of substantive areas, ranging from finance disputes to construction disputes, some by law firms and others by local courts. My fellow blogger, Mark Cohen, recently highlighted the data analysis provided by IPHouse, a firm started by a former SIPO Commissioner. They are useful to the lawyer/in-house counsel planning or considering litigation strategy, as well as for policy-makers and academics. Each provides a glimpse of how (and sometimes why) the Chinese legal system works as it does.
The Supreme People’s Court (SPC) database, China Judgments Online, receives good marks from most commentators inside and outside of China and it is one of the successes of the judicial reforms that President Zhou Qiang often discusses with visiting foreign guests as well as domestic officials. Only now has a team of researchers from Tsinghua University drilled down on the case database (but only through 2014, because the data was not complete for 2015) (short version found here and full version here). They found that there is room for improvement.
The researchers found that only about 50% of number of cases resolved in the Chinese courts (about 30.5 million during 2014-2015) have been uploaded to the case database (14.5 million).
Level and type of case
Almost 80% of the cases uploaded are from the basic level courts, with intermediate level courts accounting from almost 19%, and fewer than 1% from the SPC.
Approximately 63% of the cases are civil, with 20% criminal, enforcement 15%, and administrative cases less than 4%.
Are courts uploading cases to the database consistently?
The map above is based on an analysis of 2014 data. Shaanxi, Zhejiang, Shandong, Anhui, and Hebei provinces were the best performers, particularly Shaanxi; Henan, Fujian, Hunan, Hubei, Guangxi, and Ningxia were in the second tier, uploading at least half. The less transparent courts include Tibet, Xinjiang, and Guizhou.
[I personally expected that Shanghai, Jiangsu, and Guangdong would be more transparent.]
Are cases uploaded consistently throughout the year?
At least in 2014, there was a half year and year end rush to upload cases. It appears that the uploading of cases is one of the items for judges performance appraisal.
More than half of judicial documents have not been uploaded to the database, including judgments in some of the more controversial cases.
Technical issues complicate the uploading process. Because the courts are administered locally, the IT systems are local as well.
The regulations set out vague standards for taking down a judgment/ruling. When objections are made, the cases are taken down with little review. [As I have commented in relation to streaming of court cases, the absence of privacy legislation is an issue, because judges lack specific guidance on what information is regarded as private.]
Large gaps exist between the coastal and inland provinces in uploading judgments, with long delays an issue as well, although the regulations require judgments to be uploaded 7 business days after they take effect (this provision is unchanged from the 2013 version).
Monitoring of the database is an issue. The SPC has been stressing the quantity of judgments uploaded, while insufficient attention is paid to quality. [This may have something to do with tendency of some Chinese academics to focus on theory or comparisons among jurisdictions, rather than engage in a more focused study on what their own court system is actually doing.]
The Chinese government has allocated USD $40 billion to the Silk Road Fund associated with the One Belt One Road strategic initiative, to improve infrastructure overseas. China’s judiciary, an important part of the nation’s legal infrastructure, requires better funding as well. Even a tiny percentage of that $40 billion would go far to contribute to improve courts’ IT infrastructure, not to mention improved salaries, and the retention of the research departments of local courts.
Investment in the courts is needed to bolster the Chinese (not to mention foreign) public’s confidence in the Chinese courts’ ability to provide a better quality of justice.
As my law school classmate, Justice John Roberts, said several years ago, when confronted by budget cuts to the US federal judiciary:
At the top of my list is a year-end report that must once again dwell on the need to
provide adequate funding for the Judiciary.I would like to choose a fresher topic, but duty calls. The budget remains the single most important issue facing the courts….
The Judiciary continues to depend on the vision and statesmanship of our colleagues in the Executive and Legislative Departments. It takes no imagination to see that
failing to meet the Judiciary’s essential requirements undermines the
public’s confidence in all three branches of government. Both A Christmas
Carol and It’s a Wonderful Life have happy endings. We are encouraged
that the story of funding for the Federal Judiciary—though perhaps not as
gripping a tale—will too.